Treason Clause

Treason is the criminal offense of attempting to overthrow the government of the state to which one owes allegiance. As set forth in Article III of the Constitution, there are two ways in which this can be accomplished: by making war directly against the state or by materially supporting the state’s enemies. Treason has been considered a crime of the worst order, since it constitutes a breaking of the social compact and a breach of one’s allegiance to the state, the ultimate protector of the rights of citizens. The theory upon which treason was founded is that the government is greater than any individual and that being born into society creates a natural allegiance to the state. The long-standing punishment for breaking this trust, in England and later in the United States, is execution. In addition, the British punished treason by enacting a ‘‘Corruption of Blood,’’ which would mean that any property passed along the hereditary lineage of the traitor would be seized. This punishment was expressly prohibited in the U.S. Constitution because it almost always punished innocent relatives who had committed no treason.

The treatment of treason in the U.S. Constitution draws on English legal and historic precedent. The crime of treason on British soil had a legacy of abuses because it was manipulated by rulers to punish severely many lesser crimes. Montesquieu warned that the crime of treason, if defined broadly, would cause any government to degenerate into arbitrary uses of power over its citizens. The British had experienced this problem, where in more tyrannical historic times, rulers had arbitrarily created constructive treasons. Effectively, a citizen who committed a misdemeanor could face the ultimate penalty for having constructively committed treason by failing to heed the rules of conduct of the land. This kind of law made it nearly impossible for citizens to know what they could and could not say or do. In response to these abuses, statutes were passed by Edward III requiring two lawful witnesses to testify or confession in open court, as well as an overt act taken toward the realization of a treasonous intent. Even after these statutes were enacted, abuses occurred periodically in England.

At the Constitutional Convention, the drafters were weary of the British experience and they sought to provide clarity in order to protect against similar abuses. First, the constitution provided a decisive definition of the crime (which paralleled portions of the British statutory definition). By limiting the definition of treason in the Constitution, it could not be expanded by legislative acts of law, effectively keeping treason out of politics where, as the British example made clear, there was potential for abuse by those in power. Next, the text provides the necessary evidentiary safeguards. To be convicted, the accused must confess or the government must produce two direct witnesses of the traitorous behavior. Also, that behavior must be an ‘‘overt act,’’ not mere words. Citizens only rise to the level of treason if there is an intent as embodied in words, as well as some overt act to carry out that intent. Finally, the punishment was limited by confining it to the offender and not his heirs.

There is an inherent tension between a need to punish treason and allowing free speech. The First Amendment safeguards a right to question and criticize the government, while those same questions and criticisms coupled with overt acts taken to overthrow the government can constitute treason. It is telling that the constitutional framers omitted the British form of treason, which constituted mere plotting or imagining the death of the king. By requiring an overt act, the American definition would not punish mere thoughts or words alone. The line between what constitutes protected speech and what is treason is not always necessarily clear. Strictly defining treason and providing stringent evidentiary requirements, including an overt act, provide necessary protection for free speech and expression, while still allowing the government the ability to punish someone who truly does commit treason, as long as that person confesses or there are two government witnesses to the overt act.

One of the best known treason cases, the case of ‘‘Tokyo Rose’’ (Iva Ikuko Toguri D’Aquino v. United States, 192 F.2d 338, 9th Cir., 1951), occurred during World War II. Iva Toguri D’Aquino, an American citizen in Japan, worked as an announcer for a Japanese radio station as a prisoner of war. She worked on a radio show that was designed to reach the American troops with propaganda. She allegedly read on the air anti-American propaganda, including the claim that all the American ships had returned to the United States, leaving all U.S. troops stranded. When D’Aquino returned to the United States from Japan, press attention and public outcry largely drove her prosecutors to try her for treason. Called a traitor, D’Aquino denied the claims throughout her trial for treason. The government produced numerous witnesses, including two of her former supervisors who testified that she has given positions of American ships and had recited other anti-American propaganda. The witnesses later admitted that they had testified inaccurately and had been coached extensively by the prosecution before trial.

D’Aquino was found guilty and punished with a ten-year prison sentence, as well as a large fine. She was eventually pardoned in 1977 by President Gerald Ford, based on the apparent weaknesses in the prosecution’s case that had since come to light. The Tokyo Rose case highlights the continued need for protections against abuse, as well as the imperfections in safeguards that have existed historically. Even so, the American definition of treason has not been expanded at the hands of legislators, as has occurred in England, due to civil liberties concerns.

JAMES F. Van ORDEN

References and Further Reading

• Hurst, James W. The Law of Treason in the United States. Westport, CT: Greenwood, 1971.
• Iva Ikuko Toguri D’Aquino v. United States, 192 F.2d 338, Ninth Circuit Court of Appeals, 1951.

Cases and Statutes Cited

• Cramer v. United States, 325 U.S. 1 (1945)